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Question on ratings table

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relatively happy camper

Question

If a claimant already 100% schedular for a single disability/condition, why is the VA allowed to use the combined ratings table to get to the 60% needed to get an SMC(s) award??  From what I've seen in cases I've read, at the BVA & CAVC, the VA never lets it get that far.  The way I see it is that claimant is already rated 100% and shouldn't have use the combined table.  Once you are 100% the next ratings should be just added to total the 60% but that's not what the VA does.  If anyone can explain it to me, I'd appreciate it.

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29 minutes ago, relatively happy camper said:

If anyone can explain it to me, I'd appreciate it.

No matter how you say it or look at it, those are the criteria, rules, or regulations. Veterans must have a single 100% rating or a single TDIU rating and then the additional 60% for the SMC-S rating. It is often or a lot of times the VA forces veterans to file a claim for SMC-S when those same rules, regulations tell the VA that they should maximize the veteran’s benefits by considering the highest award possible but that is not done. Keep in mind that the additional 60% must be separate and distinct and not included within the 100% rating.

I know not what you wanted to hear but that is the way it is. 

Edited by pacmanx1
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Here is my real life recent example.  Since 1998 I was rated P&T TDIU with a single 70% PTSD rating.  Then in 2022 I received additional 50% for OSA Sleep Apnea from a BVA appeal and existing 30% for Agent Orange heart disease that combined totaled was 80% and more than the required extra 60% needed for the SMC-S award.  The VARO raters then upgraded me to 100% P&T with SMC-S.  Everything was back dated to date of my claim in 2017.  The Sleep Apnea and Heart disease sc ratings were separate and distinct medical issues from my long term PTSD.

Since then I have received 60% for AO heart disease from the BVA and 60% for GERD, 10% Tinnitus and 0% for Hypertension from the VARO raters.  The rules and regulation regarding requirement for SMC-S awards have been in effect for a great many years.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

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My understanding is that this is an either or. 

You need to have a 100% SC disability plus it requires some ADL assessments for SMC or you have the 100% plus an additional 60% for SMC without the ADL (Activities of Daily Living)(that you cannot do for yourself.)  I put in for SMC and it was denied.  Although otherwise qualified, until recently I have not had someone to help me bathe or get dressed.  Still limited help and at times I have managed by myself.  The point is the ADL limitations have to be constant.  Except for that I would be qualified for SMC-T because I have a nurse set up my seizure medication in a dispenser with a loud alarm that ensures that I take it on time and do not forget and overtake because I forgot I took it earlier.  The additional 60% is automatic.  The ADL is the problem because it requires the Occupational or Physical therapy to not be able to show you a way to do it.  Feeding yourself like a toddler for example as I was shown to teach an Aunt a long time ago.

According to the Haskell vs McDonough arguments at the CAVC by the VA General Counsel, under the new regulations, I would qualify for TBI SMC-T because of the "upper level" (professional licensed) care of filling my medicine dispenser once a week would qualify me.  Will ask CCK law firm to evaluate my case.  Seems like a lot compared to the requirements of SMC-R2 which is what SMC-T is paid at.  I would not want my denial to be precedence for veterans that were in as severe a need as Haskell but missing that one thing, to miss out on getting it because I tried to get it because I was denied a lower-level SMC for only needing directed care.

A double amputee, even using a wheelchair, that can do everything for their self, would not rate SMC.  I think it is in the future for me, but maybe not this time unless my condition advances during my appeal which it seems to be.  Depends on what it will be like when I get the Occupational Therapy and Physical Therapy consults done.  Now I cannot be sure I will be able to get dressed other than in a bathrobe to get to them.

I am not confined to using a wheelchair but have two manuals.  One has a high back and can be reclined.  I can hang a bathrobe on it so I can back into it, just cannot raise my arms over my shoulders to put it or shirts that I put on the same way.  Much of the time, I cannot get my diaper on or pants on by myself.  When it gets to every day or I am housebound because I forget how to get home, then I will qualify for SMC.

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Maybe my question wasn't clear?  My point was that the combined ratings table shouldn't be used because they are penalizing the claimant who is already 100% rated, by using the table again.  They've already used it once.  If you are 100% you have basically a zero worth, so how can they use it again.  I understand how they get there on the way to 100%.  But using it a second time is wrong.  I was pursuing that line on my appeals thru the BVA and CAVC, but before that issue was even discussed the court remanded it back to the BVA where they award me the SMC (s) HB, based on evidence in my original claim in '89.  I'd kinda hoped I could that decided but didn't.  30+20+10 should equal 60!  Period.  Any of the cases I've read they've always used the combined ratings table and never discussed why.  Sorry, it just irks me!

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35 minutes ago, relatively happy camper said:

My point was that the combined ratings table shouldn't be used because they are penalizing the claimant who is already 100% rated, by using the table again.

Still not following you. The rating chart is not used twice. If you think about it, the combined rating chart is not used until after the veteran has a single ((1) one) disability rated as 100% schedular or a single ((1) one) disability rated as TDIU and then the VA looks for the additional 60% disability ratings for SMC-S. The combined rating chart is not used because a veteran rated 100% combined schedular is not the same as having a single 100% schedular or a single TDIU rating. The key words are single and combined. With single meaning only one disability and combined meaning more than one and with combined the veteran does not meet the criteria. There must be one separate rating to qualify of 100% schedular rating or one separate TDIU rating to be even considered.      

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You can look at it that way, but the rating chart is just a guiding post for the VA to rate veterans’ disabilities. To clarify the way, the combined rating is not used twice in the same manner. For rating a single 100% scheduler rating or a single TDIU rating, those ratings are set aside and then the VA uses the combined chart to maximize the veterans’ benefits. Have you read Buie v. Shinseki? Like other precedential CAVC Decisions, the VA is supposed to assess if the veteran’s ratings have already met the criteria and then award the veteran the maximum rating benefits.  

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